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Ely
Ely, Counselor at Law
Category: Criminal Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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If a condition was imposed by a California Court, restrictin

Customer Question

If a condition was imposed by a California Court, restricting a defendant from possessing firearms for a period of ten years and offered the defendant the opportunity to petition the court to reduce his felony charge to a misdemeanor offense after successfully completing two years probation, could the defendant, 12 years late, if found in possession of ammunition, be charged with "felon if possession of a firearm"?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  N Cal Attorney replied 4 years ago.
Did he ever actually file the petition to reduce it to a misdemeanor?
Customer: replied 4 years ago.
No. He never petitioned the court to have the charge reduced, but would that be relevant if the condition imposed by the court provided a time period in which he was not to possess firearms. Wouldn't it be when the time period restricting his firearms right had ended - the restrictionb would be lifted
Expert:  N Cal Attorney replied 4 years ago.
The restriction may have been lifted as part of the sentence, but if the charge was never reduced to a misdemeanor, then the person was still convicted of a felony, and can be charged under Penal Code § 12021:


12021. (a) (1) Any person who has been convicted of a felony under
the laws of the United States, the State of California, or any other
state, government, or country or of an offense enumerated in
subdivision (a), (b), or (d) of Section 12001.6, or who is addicted
to the use of any narcotic drug, and who owns, purchases, receives,
or has in his or her possession or under his or her custody or
control any firearm is guilty of a felony.
///
From
http://leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=12001-13000&file=12020-12040

What code section was the new charge filed under?
Customer: replied 4 years ago.

The 10th Cicuit US Court of Appeals has ruled in US v Hall, 20 F.3d 1066, 1068 (10 Cir. 1994) & US v Norman 96-1342 & 96-1359, that Colorado automatically restored civil rights after adjudication with specific restriction of firearms right for only 10 years- after which full civil rights restoration precludes prosecution under 18 USC 922 (g)(1) So how can firearms possession be a "crime" after this 10 year period ?

("Possession of weapons by previous offenders") reveals that only during the 10 year period following conviction and final adjudication for felony or domestic violence - is the possession of a weapon by previous offender COMMISSION OF A CRIME

Customer: replied 4 years ago.
The current charge for the possession of the ammunition is PC 12316(b)(1). The 1998 charge restricting his firearm rights for 10 years stemmed from a domestic dispute between himself and the mother of his children was PC 273.5(a)

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